Kovera v. Envirite of Ill., Inc.

• Decision Date: 30 January 2015
• Docket Number: No. 1–13–3049.,1–13–3049.
• Citation: 26 N.E.3d 936
• Parties: Daniel KOVERA and Jennifer Kovera, Plaintiffs–Appellants, v. ENVIRITE OF ILLINOIS, INC., and Clifford Ruse, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

26 N.E.3d 936

Daniel KOVERA and Jennifer Kovera, Plaintiffs–Appellants

v.ENVIRITE OF ILLINOIS, INC., and Clifford Ruse, Defendants–Appellees.

No. 1–13–3049.

Appellate Court of Illinois, First District, Fifth Division.

Jan. 30, 2015.

Robert D. Brown and Otto J. Shragal, both of Kenneth J. Allen Law Group, LLC, of Valparaiso, Indiana, for appellants.

Danny L. Worker and Siobhan M. Murphy, both of Lewis Brisbois Bisgaard & Smith LLP, of Chicago, for appellees.

OPINION

Justice GORDON delivered the judgment of the court, with opinion.

¶ 1 On December 26, 2007, defendant Clifford Ruse was driving a tractor trailer (the truck) on an Indiana highway in his capacity as an employee of defendant Envirite of Illinois, Inc. (Envirite), when he was struck by a sport utility vehicle (SUV) that had lost control while driving over a patch of black ice. Ruse's truck, in turn, swerved to the left and struck the highway's median wall. The container the trailer had been carrying became detached from the trailer and struck the vehicle of plaintiff Daniel Kovera, causing injury. Plaintiffs filed suit against Ruse and Envirite, claiming that Ruse was negligent in operating the truck. After a jury trial, the jury rendered a verdict in favor of defendants. Plaintiffs appeal, and we affirm.

¶ 2 BACKGROUND

¶ 3 The sequence of events leading to the instant lawsuit is not materially in dispute. Before dawn in the early morning of December 26, 2007, Ruse left the Envirite yard in Harvey, Illinois, driving a tractor trailer loaded with mill dust that he was transporting to Newton County, Indiana. He drove eastbound on I–80/94, driving in the second lane from the right on the four-lane highway at approximately 55 miles per hour. At the Kennedy Avenue interchange in Hammond, Indiana, Orlando Lopez' SUV was merging onto the highway via the two-lane entrance ramp when it slid on a patch of “black ice,” a thin, transparent coating of ice on the highway. The SUV traveled across the eastbound lanes of the highway and made contact with Ruse's truck, and the truck swerved to the left and collided with the highway's median wall. The container of mill dust detached, landing on the westbound side of the highway. When the container landed, it damaged several vehicles and injured several individuals, including plaintiff Daniel Kovera, who was traveling westbound on the highway from his home in Griffith, Indiana, on his way to work in Lemont, Illinois.

¶ 4 I. Pretrial Proceedings

¶ 5 On March 6, 2008, plaintiffs filed a 12–count complaint in the circuit court of Cook County against defendants,¹ alleging, inter alia, claims of negligence in Ruse's driving and in securement of the load of mill dust, willful and wanton conduct, and res ipsa loquitur. On December 12, 2008, defendants filed a third-party complaint against Orlando Lopez, claiming that if they were found liable, they would be entitled to contribution from Lopez pursuant to the Illinois Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 et seq. (West 2008)). On April 24, 2009, Lopez filed a motion to dismiss for lack of personal jurisdiction, which was denied on May 11, 2010.

¶ 6 On May 7, 2009, plaintiffs filed an amended complaint, adding Lopez as a defendant. On November 24, 2009, defendants filed an answer and affirmative defenses to the amended complaint. Defendants included as an affirmative defense the claim that Lopez' negligence was the sole and proximate cause of plaintiffs' damages. The affirmative defense stated that “[u]nder Indiana law, which this Court should follow[ ] in this case,” any award should be reduced by the percentage of fault attributable to Lopez. On November 2, 2009, defendants filed a motion to dismiss the counts based on res ipsa loquitur, citing Illinois law.

¶ 7 On August 10, 2010, plaintiffs filed a second amended complaint. On January 11, 2011, Lopez filed a cross-claim for contribution against defendants. On January 21, 2011, defendants filed an answer and affirmative defenses to plaintiffs' second amended complaint. Again, defendants included as an affirmative defense the claim that Lopez' negligence was the sole and proximate cause of plaintiffs' damages and that “[u]nder Indiana law, which this Court should be following in this case due to the accident occurring in Indiana,” any award should be reduced by the percentage of fault attributable to Lopez.

¶ 8 On May 13, 2011, plaintiffs filed a motion for a finding that a proposed settlement between plaintiffs and Lopez in the amount of $250,000 was made in good faith. On May 20, 2011, the court entered an order finding the proposed settlement to be fair and reasonable and made in good faith. The order discharged Lopez from all liability for contribution and dismissed the complaint by plaintiffs as to Lopez with prejudice. However, the order also expressly stated that “nothing in this Order shall affect the rights of remaining Defendants to assert [the] application of Indiana law to this case, in particular the naming of the settling party ORLANDO LOPEZ as a non-party herein, over Plaintiffs' objection.”

¶ 9 The issue of whether Illinois or Indiana law applied was ultimately not decided until the beginning of trial.

¶ 10 On December 11, 2012, defendants filed their preliminary Rule 213(f)(3) disclosures. Ill. S.Ct. R. 213(f)(3) (eff. Jan. 1, 2007). Defendants identified Daniel Fittanto as an expert, stating that “Mr. Fittanto is a professional engineer. * * * Mr. Fittanto has over nineteen (19) years of professional experience in the investigation, analysis, and reconstruction of vehicle accidents involving heavy trucks, passenger cars, motorcycles, bicycles, off-highway equipment, and pedestrians. Mr. Fittanto has specialized training and experience in the analysis of commercial motor vehicle (CMV) incidents.” Defendants further stated that “Mr. Fittanto's education, training, and experience include technical accident investigation and reconstruction, vehicle dynamics, heavy duty truck dynamics and systems, commercial vehicle cargo securement, heavy truck brake inspections, 3D computer-aided-drafting (CAD) software, 3–D vehicle dynamics and collision simulation programs, truck electronic control module (ECM) and automobile event data recorder (EDR) data extraction and analysis, full-scale testing involving cars and heavy trucks, and photogrammetry. His research and publications include full-scale crash tests between tractor-trailers and cars, calculating speeds for vehicles in yaw, heavy truck rollover, truck brake hearing, and the application of vehicle dynamics computer simulations to car and truck handling analyses.”

¶ 11 Defendants stated that Fittanto “is expected to render opinions and conclusions as to his reconstruction of the subject accident, the regulations and requirements concerning cargo securement, his inspection of the subject chassis trailer and roll-off container being hauled by the Defendants on December 26, 2007, the straps and mechanisms used to secure the container to the chassis, the cause of the container's separation from the chassis, and other causation issues.” Finally, defendants stated that one of Fittanto's opinions was that “[a]s a combined result of the collision [with Lopez' vehicle] and Mr. Ruse's emergency maneuvers, the Defendants' tractor-trailer impacted the median wall. The impact with the median wall caused the container and chassis to roll, and as a result of the forces sustained during this impact and rollover event, the container became detached from the chassis.” Plaintiffs chose not to depose Fittanto, twice canceling his scheduled deposition, so defendants took Fittanto's deposition without plaintiffs' counsel present on March 16, 2013.

¶ 12 II. Trial

¶ 13 Trial commenced on March 19, 2013. We relate here only the proceedings relevant to the issues in the instant case, namely, the alleged negligence of Ruse in driving the Envirite truck.

¶ 14 Prior to beginning trial, the court ruled on the choice of law issue. The court noted that there were two areas in which Indiana law differed substantively from Illinois law. The first was the question of whether Lopez, a settling defendant, would be named on the verdict form. The second was the question of what evidence would be presented concerning medical bills. The court noted that there was a presumption that the law of Indiana would apply, since it was the location where the injury occurred, but that the presumption could be overcome if Illinois had a more significant relationship to the case. However, it found that “considering all the policies, interests of Indiana and Illinois and in this particular field of the tort law in relation to the [R]estatement [S]econd, I cannot conclude that Illinois' relationship to this case is so pivotal as to overcome the presumption that Indiana as a state where the injury occurred, is the state with the most significant relationship, [so] Indiana law will apply.”

¶ 15 The next day, prior to opening statements, the court considered the issue of Lopez and what information the jury would be provided about his settlement. The court determined that Lopez would not be named on the verdict form. However, the court found that the fact that Lopez had settled with plaintiffs could be mentioned, but not the amount of the settlement.

¶ 16 During plaintiffs' case in chief, Ryan Moore testified that he was a tow truck operator on December 26, 2007, and had been called to an accident in which a pickup truck had lost control on I–80/94 near Kennedy Avenue at approximately 5 a.m. He stopped the tow truck, with amber emergency lights flashing, on the right shoulder of the highway; the highway, at that point, had four travel lanes and two merge lanes, and he was on the right shoulder of the merge lanes. He stepped out of the tow truck and noticed that the ground was slippery. However, the travel portions of the highway that he had driven had been dry.

¶ 17 Moore was preparing to load the pickup truck onto the tow...